Matthew T. Mangino: Trump’s nominee Won’t be another Scalia’

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Feb 3, 2017 at 9:23 AM

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President Donald Trump made a prime-time announcement of his nominee for the U.S. Supreme Court. His choice is Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit. Trump boasted that he has selected an individual whose “qualities … closely define what we’re looking for” to fill the vacancy left by the late Justice Antonin Scalia.

The Heritage Foundation’s Daily Signal reported that the 49-year-old Gorsuch would bring to the court a strong record on gun rights and religious freedom, and what admirers call a clearly articulated judicial philosophy.

Gorsuch was born in Denver, but spent his formative years in Washington D.C. when his mother joined the Reagan administration as the first woman to lead the Environmental Protection Agency.

He graduated from Columbia University, Harvard Law School and Oxford University in England.

According to the New York Times, Gorsuch served as a law clerk to former Justice Byron R. White, then a retired justice of the Supreme Court, and Justice Anthony Kennedy. He was fond of White, a fellow Coloradan. “I began my legal career working for Byron White,” he said, “the last Coloradan to serve on the Supreme Court — and the only justice to lead the NFL in rushing.”

Will Gorsuch be another Antonin Scalia, the man he is to replace? Caleb Mason a partner at Brown, White and Osborn in Los Angeles writing for The Crime Report doesn’t think so.

Mason wrote a detailed essay examining Scalia’s unique view of criminal law jurisprudence.

He wrote that Scalia’s “(The) weird mix of judicial impulses that led to the dramatic shifts in the law listed above is his and his alone. His criminal law views didn’t predictably track right or left.”

Gorsuch’s record on criminal justice appears to be less conservative that his record in other areas of the law.

Gorsuch is no fan of overcriminalization. In a 2006 speech, Gorsuch mocked some overreaching federal criminal statutes, “Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too.” According to Slate, he went on to say, “What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

In a recent case before the 10th Circuit, Gorsuch dissented from two of his conservative colleagues that held that a police officer was immune from suit after he arrested a seventh grader for making burping sounds during class.

According to Thinkprogress.com, Gorsuch wrote that state law “does not criminalize ‘noise(s) or diversion(s)’ that merely ‘disturb the peace or good order’ of individual classes.” He suggested that the teacher should have sent the student to detention or the principal’s office rather than turning him over to the police.

Neal K. Katyal, a professor at Georgetown University and a former acting solicitor general in the Obama administration wrote in the New York Times, “I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.”

Judge Gorsuch may have cried when he heard Justice Scalia had died, but at least on criminal justice issues he does appear to be completely in line with the late justice. As Katyal wrote, “If he is confirmed, he’ll have 30 years to forge his own judicial identity. And whoever he becomes on the Court, he won’t be another Scalia.”

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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